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CHAPTER 16 EVIDENCE Evidence is something presented at trial to prove or disprove the existence of an alleged fact. Black’s Law Dictionary. Not all facts, recollections, records, opinions, or physical items are evidence. Each of the mentioned proofs must meet certain legal standards before they can be called evidence. In determining whether an offered proof is evidence, the court determines if the proof meets the legal threshold of admissibility, but not whether the proof is conclusive, credible, believable, or true. The factual credibility of the evidence is determined by the fact finder after hearing all the evidence. Rule 104,T .R.E. The most common form of evidence is oral statements of witnesses based on personal knowledge. In limited circumstance, evidence can be opinions of a witness. Evidence can also be physical items, such as records, photos, recordings, etc. Demonstrative evidence is proof offered as illustrations or explanations of the witness’s recollections and perceptions. This includes physical demonstrations by the witness, drawings created during or before testimony, experiments, lists, items that are introduced that look like items observed by the witness, or any other item that demonstrates other properly introduced evidence. 1. When Do the Texas Rules of Evidence Apply? Checklist 16-1 Script/Notes
r 1. The Rules of Evidence apply in all trials before Art. 45.011, C.C.P. the court or a jury.
r a. They apply in all adversary hearings before the court except:
r (1) Preliminary hearings to Rule 101(d)(1)(D), T.R.E. determine if competency is an issue;
r (2) Initial appearance before a Rule 101(d)(1)(E), T.R.E. magistrate for a hearing and setting of bail;
r (3) Applications for search or arrest Rule 101(d)(1)(G), T.R.E. warrants;
r (4) Pre-trial hearings on the Rules 101(d)(1)(A) and 104(a), admissibility of confessions T.R.E. or other evidence outside the presence of the jury; and/or
r (5) Proceedings in a direct contempt Rule 101(d)(1)(H), T.R.E. See determination. Chapter 14 in this book.
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r 2. The rules of privilege always apply. A right of privilege is the right to refuse to testify or answer certain questions. The privileges recognized by the Rules of Evidence, in addition to the constitutional privilege against self incrimination, include the following:
r a. The lawyer-client privilege Rule 503, T.R.E.
Attorneys, their staff, clients of an attorney, and representatives of the client, may all refuse to disclose information concerning lawyer-client communications made pursuant to lawful representation.
r b. The marital privilege Rule 504, T.R.E.
r (1) The spouse has a privilege not to Art. 38.10, C.C.P. take the stand, except in cases of domestic violence.
r (2) The spouse can also refuse to answer questions concerning communications made during the marriage, unless they were made in furtherance of a crime or in cases of domestic violence. The marital communications privilege survives both death and divorce.
r c. The clerical or confessor privilege Rule 505, T.R.E.
r d. There is no physician-patient privilege Rule 509, T.R.E. in criminal proceedings, except a limited privilege for those voluntarily seeking alcohol or drug abuse treatment.
r c. The journalist’s qualified testimonial Art. 38.11, C.C.P. privilege in criminal proceedings
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r 3. Certain information as well as certain communications are privileged:
r a. A person’s vote in any election; and Rule 506, T.R.E.
r b. Privileges created by statutes that require Rules 502, 507 (Trade Secrets), certain records be kept, except where the and 508 (Police Informants), privilege is asserted to conceal fraud. T.R.E.
r 4. Special statutory rules of evidence are used in Art. 38.37, C.C.P. (Evidence of hearings on sentencing or revocation. Extraneous Offenses or Acts)
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CHAPTER 16 EVIDENCE 2. Ways to Prove a Fact Checklist 16-2 Script/Notes
r 1. Judicial notice
r a. Certain matters may be deemed by the Rule 201(c) and (d), T.R.E. court to be self-evident, well known, or conclusively proven so that the court can simply declare them established by “judicial notice” at the request of a party or on its own initiative.
r b. The court may take judicial notice when:
r (1) A fact is “generally known in the jurisdiction;”
r (2) A fact is “capable of accurate Rule 201(b), T.R.E. and ready determination by resort to sources whose accuracy cannot reasonably be questioned;” or
r (3) The fact in issue is the existence Rule 204, T.R.E. or wording of a municipal or county ordinance or other such government regulation, provided the movant present the court with a proper copy of such ordinance.
r c. The court must allow both sides to be Rules 201(e) and 204, T.R.E. heard when taking judicial notice.
r 2. By the testimony of competent witnesses See Rule 601, T.R.E., concerning competency of witnesses.
r 3. By the introduction of properly predicated and introduced records or other physical evidence
r 4. Arguments by attorneys, parties, witnesses, or any statements by others not sworn and examined are not evidence and not to be considered by the fact finder as evidence.
r 5. Plea bargains, plea negotiations, and plea Rule 410, T.R.E. discussions are not admissible.
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CHAPTER 16 EVIDENCE 3. How Objections are Made and Ruled on by the Court Checklist 16-3 Script/Notes
r 1. Objections
r a. Objections must be made by a party. A defendant cannot object if Objections can never be made by a represented by counsel. witness or the court.
r b. The objection is made to the court and not to the opposing party, witness, or jury.
r c. The objection should be respectful and State the legal basis for objection not argumentative. to the proffered question or answer
r d. The objection should be timely made. Rule 103(a), T.R.E.Proper The objection must be made when the objection:“Your Honor, I object to objectionable question or answer is made that or given. ( question/answer ) because it is ( hearsay/not relevant/a leading question/ etc. ).”
r e. Objections must be made every time a Ethington v. State, 819 S.W.2d 854 matter is raised to preserve the matter for (Tex. Crim. App. 1991). review on appeal unless the court grants a “running objection” on the record, outside the presence of the jury.
r f. Objections that raise matters important to Rule 103(c), T.R.E. the court’s ruling, but not appropriate for the jury to hear, should be made outside the earshot or presence of the jury.
r (1) Removal may be made at either party’s request or on the court’s own suggestion.
r 2. Responses
r a. The court has broad discretion in ruling Rule 103, T.R.E. on objections.
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r b. The court has no obligation to listen to Proper response:“Your Honor, may responses, but should do so if hearing the I respond to the objection?” response would aid the court in making a proper ruling.
r c. Remember that responses are often best made outside of the jury’s hearing.
r 3. Offers of proof
r a. To properly consider excluded evidence on appeal, the reviewing court must be able to study that evidence.
r b. The party tendering the excluded evidence is responsible for getting the excluded evidence into the record.
r c. The offer of proof is always made outside the presence of the jury.
r d. The party making the offer of proof may Dopico v. State, 752 S.W.2d 212 be granted substantial latitude in the (Tex. App.— Houston [1st Dist.] means of producing said evidence. 1988, pet. ref’d); andRule 103(a) (2), T.R.E.
r e. The offer of proof may be made by:
r (1) Sworn statement;
r (2) Placement in the record of a physical object not admitted into evidence;
r (3) Questions to and answers of a This is obligatory if requested. witness; or Rule 103(b), T.R.E.
r (4) A summary by counsel of the questions and answers expected.
r f. Offers of proof do not have to be made at the time of the objection and may be made at any time during the trial, so as to facilitate an orderly presentation of the evidence at trial.
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CHAPTER 16 EVIDENCE 4. Hearsay Checklist 16-4 Script/Notes
r 1. Hearsay is a statement, other than one made Rule 801(d), T.R.E. by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
r 2. Hearsay testimony is not admissible unless it Rule 802, T.R.E. falls under an exception to the hearsay rule.
r 3. Hearsay includes non-verbal conduct if intended Rule 801(a), T.R.E. as a substitute for verbal expression.
r 4. To be hearsay, the statement must be offered to prove the content of the statement. If the statement is offered to prove that the statement was made and not that the statement is true, it is not hearsay.
r 5. Statements defined by the rules as not hearsay: Rule 801(e), T.R.E.
r a. Prior statements by the witness.
r b. Statements by a party offered against that party. (Admission by Party-Opponent)
r 6. Statements that are hearsay, but admissible under an exception to the hearsay rule:
r a. A present sense impression. Rule 803(1), T.R.E.
r b. Excited utterances. Rule 803(2), T.R.E.
r c. A statement of the declarant’s then Rule 803(3), T.R.E. existing state of mind, emotion, sensation, or physical condition.
r d. A statement made for the purpose of Rule 803(4), T.R.E. medical diagnosis or treatment.
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r e. A prior written record by the witness Rule 803(5), T.R.E. about matters that he or she once had personal knowledge, but now is unable to recall if such a record was reliably created when the matters were fresh in his or her mind.
r f. Regularly kept business, public, official, Rule 803(6)-(15), and (17), T.R.E. medical, commercial, or family records must:
r (1) Be kept in the regular course of these other enterprises;
r (2) Be recorded by persons with personal knowledge; and
r (3) Have some indicia of trustworthiness.
r g. Authenticated documents over 20 years Rule 803(16), T.R.E. old.
r h. Learned treatises when used to question Rule 803(18), T.R.E. experts.
r i. Reputation testimony. Rule 803(19)-(21), T.R.E.
r j. Judgments of previous conviction against Rule 803(22), T.R.E. the defendant.
r k. Statements made by the declarant that Rule 803(24), T.R.E. were against his or her monetary, legal, or social interest.
r l. Statements made exposing the Rule 803(24), T.R.E. declarant to criminal liability must be corroborated.
r 7. Some hearsay statements are admissible only if Rule 804, T.R.E. the declarant is not available as a witness due to privilege, refusal to testify, lack of memory, death or infirmity, or lack of the witness’s attendance at trial due to no fault of the party seeking the testimony. The following are not excluded from evidence if the declarant is unavailable as a witness:
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r a. Former testimony where both parties Rule 804(b), T.R.E. were able to fully cross-examine the witness.
r b. Dying declarations of the declarant.
r c. Statement of personal or family history. Rule 804(b), T.R.E.
r 8. If a hearsay statement comes into evidence, Rule 806, T.R.E. the credibility of the declarant of the hearsay statement is put at issue and may be challenged by other evidence.
r 9. Hearsay within hearsay is not excluded if Rule 805, T.R.E. an exception is provided for each part of the combined statement.
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CHAPTER 16 EVIDENCE 5. Objections Concerning Nature of Questions, Answers, or Courtroom Behavior
Checklist 16-5 Script/Notes
r 1. Leading questions are questions that suggest Rule 611(c), T.R.E. the answer desired by the questioner. Leading questions are proper and preferred during cross- examination or during any examination of a hostile witness.
r 2. Scope of cross-examination: A witness may be Rule 611(b), T.R.E. cross-examined on any matter relevant to any issue in the case, including credibility.
r 3. Narrative answers - All examinations should be done in a question and answer format. Failure to follow this format causes opposing counsel to be unable to object to particular matters. Testimony that moves from topic to topic without interspersed questions is narrative and improper. However, in some situations, the court may permit narrative responses.
r 4. Badgering the witness: A trial should be a formal Rule 611(a), T.R.E. and civilized proceeding. Undue dramatics, improper aggression, or just plain bad manners may be controlled by the court on a proper objection. The court, if necessary, may act on its own to stop certain conduct.
r 5. Sidebar comments and arguing with the witness: An example of sidebar comments During testimony, the attorney’s and/or pro se would include:“Oh, I’m sure defendant’s role is to ask questions; they are that is what you saw.”“Please, not sworn and they may not testify. Counsel Your Honor, that is such a stupid and pro se defendants should not be allowed question.”“Objection . . . Like he’s to comment on witness’ answers, opposing never going to sustain one of my counsel’s questions, or the court’s rulings in a objections.” verbal or non-verbal fashion. Counsel and pro se defendants must convey the ideas they wish to express to the jury through proper questions and during closing arguments. Objections, as noted earlier, should be addressed to the court and not to the witness, opposing counsel, pro se defendant, or jury.
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r 6. Non-responsive answers: The court should To properly make this objection, require witnesses to answer proper, clearly stated counsel must ask clear, simple questions as asked. During cross-examination, questions that do not call for an witnesses should be limited to answering explanation. questions as asked.
r 7. The court shall exercise reasonable control over Rule 611, T.R.E. witnesses and the presentation of evidence. The efficient presentation of evidence and actual ascertainment of the truth should be the constant goals of the court.
r 8. Ethically, the court must require order and Canon 3B(3), Texas Code of decorum in all proceedings. These objections are Judicial Conduct all based on conduct rather than content and may provide the court with a tool to control courtroom behavior.
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CHAPTER 16 EVIDENCE 6. Objections to the Introduction of Physical Evidence
Checklist 16-6 Script/Notes
r 1. Predicate: Before introduction of a piece of For a quick and complete listing physical evidence, the party offering the evidence of proper predicates, please refer must establish certain preliminary facts: to Predicate Manual published by the Texas District and County Attorneys Association (512.474.2436).
r a. The item is authentic; and
r b. If the item is perishable or alterable, the party offering the evidence must show either that the evidence has been in a secure “chain of custody” or that the item has not been altered or changed since it was gathered.
r 2. Photographs and recordings must be shown to accurately reflect what the witness initially observed. If such testimony is not available, photographs and recordings are admissible under the rules in Step 1 above.
r 3. Demonstrative evidence need only be shown to be helpful to the jury, and be explained by the witness.
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